Real Estate, Property & Conveyance Law
Comprehensive Guide to Property Rights, Transactions, and Development
Overview of Real Estate & Property Law
Real estate and property law governs the ownership, use, and transfer of land and buildings. It encompasses everything from individual home ownership to large-scale commercial developments. Understanding these legal frameworks is essential for anyone involved in property transactions.
Core Concepts
Freehold Estate
Absolute ownership of land for an indefinite period. The closest form to absolute ownership under Irish law.
Land and Conveyancing Law Reform Act 2009, s. 11Leasehold Estate
Right to possess and use land for a fixed term (e.g., 99, 150, or 999 years) granted by the freeholder.
Subject to rent and covenantsThe Conveyancing Process
Conveyancing is the legal process of transferring ownership of property from seller (vendor) to buyer (purchaser). The process typically takes 12-16 weeks from sale agreed to completion.
Key Stages in Conveyancing
Stage 1: Pre-Contract (4-8 weeks)
- Title Investigation: Purchaser's solicitor investigates the vendor's title to the property
- Requisitions on Title: Formal questions raised with vendor's solicitor (Law Society Requisitions on Title 2019 Edition)
- Property Searches: Local authority, environmental, water services, and Land Registry searches
- Contract Review: Review of Law Society Conditions of Sale 2019 Edition
- Planning & Building Control: Verify planning permissions and compliance with Building Regulations
Stage 2: Exchange of Contracts (1-2 weeks)
- Both parties sign identical contracts
- Purchaser pays deposit (typically 10% of purchase price)
- Legal commitment created - both parties bound to complete
- Completion date fixed
Stage 3: Pre-Completion (1-2 weeks)
- Final searches: Land Registry, judgment searches, company searches
- Contract execution of transfer deed
- Funding arrangements finalised with lender
- Stamp Duty calculation and preparation
Stage 4: Completion
- Transfer of funds to vendor's solicitor
- Keys released to purchaser
- Title deeds delivered
- Property officially changes hands
Stage 5: Post-Completion
- Stamp Duty paid to Revenue within 44 days
- Registration with Tailte Éireann (Land Registry)
- Notification to management company (if applicable)
- Mortgage registration (if applicable)
Pre-Contract Investigation of Title
The pre-contract investigation is critical under the Law Society Conditions of Sale 2019 Edition. Purchaser's solicitor must raise all Requisitions on Title before contract signing. Key documents investigated include:
- Land Registry Folio (for registered land) or title deeds (for unregistered land)
- Planning permissions and compliance certificates
- Building Control Act compliance (Commencement Notices, Certificates of Compliance)
- Easements, rights of way, and covenants affecting the property
- Family Home Protection Act consents (if applicable)
- Management company details (for MUDs properties)
Property Rights & Interests
Easements
Easements are rights enjoyed by one landowner over another's land. The four essential characteristics from Re Ellenborough Park [1956] Ch 131 are:
- There must be a dominant and servient tenement
- The easement must accommodate the dominant tenement
- The dominant and servient owners must be different persons
- The right must be capable of forming the subject matter of a grant
Prescriptive Easements
Under the Land and Conveyancing Law Reform Act 2021, the Doctrine of Lost Modern Grant now governs all future claims. Key requirements:
- 20 years' user as of right (without force, secrecy, or consent)
- Continuous use (not necessarily constant, but appropriate to the nature of the right)
- No requirement to use "next before suit"
Case Reference: Carroll v Sheridan and Sheehan [1984] ILRM 451
Restrictive Covenants
Covenants are promises contained in deeds restricting land use. The case of Baxter v Four Oaks Properties [1965] Ch 816 established principles for building schemes. Modern approach under the Land and Conveyancing Law Reform Act 2009 allows for modification or discharge where:
- The covenant is obsolete
- It impedes reasonable development
- Those entitled to benefit have agreed
- No injury would be caused by discharge
Co-Ownership
Joint Tenancy
- Right of survivorship (jus accrescendi)
- Co-owners registered at same entry
- On death, interest passes to surviving joint tenant(s)
- Can be severed under s. 30, Land and Conveyancing Law Reform Act 2009
Tenancy in Common
- No right of survivorship
- Each owner holds a distinct, undivided share
- Share passes under will or intestacy on death
- Can be held in unequal shares
Real Estate Development Process
Site Acquisition & Due Diligence
- Restrictive covenants preventing development
- Unknown easements or rights of way
- Environmental contamination (Part 5 of EPA Act)
- Protected structures under Planning Acts
- Zoning restrictions in Development Plan
- Boundary disputes or discrepancies
- Management company obligations
- Third-party rights of way
- Standard planning conditions
- Minor boundary adjustments
- Consent requirements from Land Registry
Planning & Development Law
- Development Plans: Each local authority has a statutory plan zoning land for specific uses
- Planning Permission Types:
- Outline Permission - Establishes development principle
- Full Permission - Detailed consent for specific development
- Permission Consequent on Outline - Detailed approval following outline
- Environmental Impact Assessment (EIA): Mandatory for large-scale projects under EU Directive 2011/92/EU
- Building Regulations: Technical standards for construction under Building Control Acts 1990-2020
Development Finance & Construction
- Development Finance Agreement: Loan contract with bank/lender including:
- Legal charge (mortgage) over the land as security
- Drawdown conditions linked to planning permission and construction milestones
- Covenants regarding construction standards and timelines
- Construction Contracts:
- Lump Sum/Fixed Price: Set price for defined works
- Design & Build: Contractor responsible for both design and construction
- Cost-Plus: Developer pays actual costs plus agreed fee
- Key Clauses: Payment terms, variation procedures, delay penalties (liquidated damages), defect liability period, dispute resolution
Multi-Unit Developments (MUDs)
The Multi-Unit Developments Act 2011 governs apartments and housing estates with shared amenities. Key requirements:
- Management company must be established to manage common areas
- Owners are members of the management company
- Sinking fund for long-term maintenance
- Disclosure requirements for service charges
- Dispute resolution procedures through the RTB
Key Case Law
Re Ellenborough Park [1956] Ch 131
Facts: Owners of houses adjoining a park claimed right to use the park as a pleasure ground, granted when houses were sold.
Principle: Established the four essential characteristics of an easement. The court recognised a right to use a garden/pleasure ground could be a valid easement, demonstrating that the categories of easements are not closed.
Smyth v Fenelon & Anor [2023] IEHC 536
Facts: Dispute over the extent of an express right of way over a laneway in Ballsbridge, Dublin, affecting development plans for eight homes.
Principle: Express grants of easements must be interpreted based on the specific language, attached maps, and the context known to parties at the time of grant. The court will not imply an expansive interpretation beyond the original intent.
Bank of Ireland v Smyth [1995]
Facts: Mrs Smyth signed consent to a charge on the family home without understanding it would affect the family home.
Principle: Consent under s. 3 of the Family Home Protection Act 1976 must be fully informed and freely given. The bank had constructive notice of her lack of knowledge under s. 3 of the Conveyancing Act 1882.
Shirley & Others v A. O'Gorman & Co Ltd & Others [2012]
Facts: Supreme Court decision on ground rent purchases that created uncertainty about the definition of "predecessors in title".
Principle: The 2019 Landlord and Tenant (Ground Rents) (Amendment) Act was passed to reverse this decision, clarifying that former tenants under expired leases are not predecessors in title.
Key Case Law for Property Professionals
Donoghue v Stevenson [1932] UKHL 100 - "The Snail Test"
Facts: Mrs Donoghue drank ginger beer containing a decomposed snail. She suffered illness and sued the manufacturer.
Principle: Established the modern law of negligence and the "neighbour principle" - you owe a duty of care to persons closely and directly affected by your acts or omissions.
Significance for Property: Foundational case for professional negligence claims against surveyors, valuers, and solicitors.
Resources: Video Summary | Detailed Analysis
Dunne v Mahon [2005] IESC 81
Facts: An estate agent acted without authority and a third party sought damages.
Principle: Where an agent acts without authority, the third party can sue the agent for damages for breach of warranty of authority, even if the agent acted innocently.
Significance for Property: Essential for understanding agency liability in property transactions.
PSRA v Various Respondents
Facts: Enforcement actions by the Property Services Regulatory Authority against unlicensed or non-compliant property service providers.
Principle: Unlicensed practice is a criminal offence. The PSRA actively enforces compliance.
Significance for Property: Highlights the importance of maintaining a valid PSRA licence and complying with regulations.
Criminal Assets Bureau v Murphy & Others [2018]
Facts: CAB proceedings to seize assets obtained through criminal conduct.
Principle: Property acquired with proceeds of crime can be seized regardless of who holds legal title.
Significance for Property: Emphasises the importance of AML compliance in property transactions.
Data Protection Commission v Tusla [2021]
Facts: High Court case regarding data protection compliance and enforcement.
Principle: The DPC has significant enforcement powers for GDPR breaches.
Significance for Property: Property professionals must handle client personal data in compliance with GDPR.
Wildgust v Bank of Ireland & Norwich Union [2001] IEHC 978
Facts: Insurance claim dispute involving property damage.
Principle: Clarified principles of insurance law and duty of disclosure.
Significance for Property: Important for property professionals advising clients on insurance matters.
Key Legislation
| Legislation | Purpose | Key Provisions |
|---|---|---|
| Land and Conveyancing Law Reform Act 2009 | Modernises land and conveyancing law | Definition of "land" (including airspace), creation of legal estates, contracts for sale, mortgages, easements |
| Land and Conveyancing Law Reform Act 2021 | Amends 2009 Act, particularly on prescriptive easements | Repeals s.33-39 of 2009 Act, establishes Doctrine of Lost Modern Grant for future claims |
| Registration of Title Act 1964 | Governs land registration system | Establishes Land Registry (now Tailte Éireann), compulsory registration on sale, class of titles |
| Family Home Protection Act 1976 | Protects family home from disposal without spouse's consent | s.3 requires written consent of spouse for any disposition of family home |
| Multi-Unit Developments Act 2011 | Governs apartments and estates with shared amenities | Management companies, sinking funds, owner rights, dispute resolution |
| Planning and Development Acts 2000-2025 | Governs land use planning and development control | Development plans, planning permission, enforcement, strategic infrastructure |
| Building Control Acts 1990-2020 | Regulates building standards | Commencement notices, certificates of compliance, inspection regimes |
| Residential Tenancies Acts 2004-2025 | Governs landlord-tenant relationships | RTB registration, rent pressure zones, tenancy termination, dispute resolution |
Property Registration: Land Registry vs Registry of Deeds
Land Registry (Tailte Éireann)
- Function: Conclusive evidence of ownership and title
- State Guarantee: Yes - titles are guaranteed by the State
- Document: Folio (Parts I: Description, II: Ownership, III: Burdens)
- Compulsory: All sales of land must now be registered
- Classes of Title: Absolute, Qualified, Possessory, Good Leasehold
Registry of Deeds
- Function: Records deeds and determines priority
- State Guarantee: No state guarantee of title
- Document: Memorial (pre-2008) or ROD Application Form (post-2008)
- Compulsory: No, but necessary to preserve priority
- Note: Being phased out in favour of Land Registry system